Law Professors Bother to Communicate

by Neil H. Buchanan

Law professors are often derided by other academics as "not real scholars."  The complaint, in the end, boils down to little more than credentialism, because it is still possible to be a tenured or tenure-track professor in law without a Ph.D. or equivalent, whereas that is generally no longer possible in any of the traditional academic fields.  Although I left Rutgers-Newark's law school before I would have been up for tenure, the stories there about the university-wide tenure committee's condescension and hostility toward law professors would make one's hair curl.  From everything that I have seen and heard, such negative attitudes are common among non-law academics across the academic landscape.

The classic model of becoming a legal academic did not involve post-law school graduate study.  The successful future top-tier law professor would graduate from a top-five law school (or, if we are being honest about it, almost always Yale or Harvard), clerk for a "feeder" appellate judge and then for a U.S. Supreme Court justice, and then either go straight into legal academia or work at the Office of Legal Counsel or a similarly platinum-plated job (perhaps with an elite private law firm) for a year or two.  And it is undeniably true that this classic model produced some fabulous scholars, whose work is taken seriously by scholars across the academy.  (I am lucky enough to co-blog with two such scholars.)

Nevertheless, the lower intellectual status of legal academics has persisted.  Over the last generation or so, law faculties have tried to deal with their resulting self-doubt by hiring "law and" Ph.D. holders, who might or might not have followed the law school path that the classic types followed, and whose legal scholarship is deliberately interdisciplinary.  (My non-top-five JD -- horrors, Michigan was in the second five! -- was forgivable because of the Ph.D. in economics from Harvard on my resume.)  This new model of hiring has enhanced and enriched legal scholarship, complementing and then all but supplanting traditional doctrinal legal scholarship, even though there are still plenty of people joining legal academia after following the more classic non-Ph.D. route.  The best traditional legal scholars were already writing in a rich, cross-disciplinary style, and the infusion of people with graduate degrees in non-professional fields has led to the current era in which legal scholarship is no longer aimed in the first instance at being useful to judges.

Despite all of that, there is still a sense in which legal scholars are self-conscious about their academic bona fides, and the reason boils down to something quite bizarre: We live in a world in which we expect the excellent young scholars whom we hire to prove worthy of tenure, and we are usually right.  Compare that to other fields, even the "strongest" ones like economics, where top departments are infamous for tenuring virtually no untenured professors.  Yet rather than viewing the non-law fields as unhealthy variations on "Lord of the Flies," it is legal scholars who wonder whether we are tough enough.  Don't real men destroy young people's careers for sport?

These and related thoughts came to mind last month, as I was reading an op-ed called "The Conference Manifesto" in The New York Times.  Authored by an untenured humanities professor at Princeton, the piece sent a shiver of recognition through me -- as it surely did for every academic who read it.  The first sentence, "We are weary of academic conferences," leads the author into a wonderful list of complaints about academic conference presentations:

"We have tried to ignore the lack of a thesis or even one interesting sentence in a 20-minute talk."

"We have suffered in silence while someone, for the duration of their talk, simply lists the appearances of a certain theme in a novel."

"We have listened for the first five minutes of the talk, just long enough to seize upon a word around which we’ll construct a pseudo-question in the Q. and A."

And, of course: "We have passed or received notes during a particularly painful session that read 'Kill me now.'"

Been there.  Or, I should say, used to go there.  These days, howevever, I go to conferences where the speakers are almost exclusively legal scholars.  These scholars comprise the now-common mixture of JD-only and JD/PhD's described above, but they are almost all legal scholars.  And although one would never go so far as to say that every presentation has opened my eyes to new vistas of knowledge, I can honestly say that I do not ever recall a legal scholar committing the litany of sins that the Princeton humanist so devastatingly describes.

I am thinking about this issue now, because I recently returned from the Law & Society Association's annual meetings, which were held this year in Seattle.  Law & Society is unique, in that it provides the premier opportunity each year for legal scholars to interact with scholars in other fields.  As usual, I organized the tax-related sessions, the population of which is almost exclusively legal scholars, even at Law & Society, because tax-specialist economists generally think they have nothing to learn from non-economists (and thus do not attend Law & Society at all), while attendees in other academic specialties tend to accept the "tax is different" meme that we see inside the legal academy as well.  Within this law-only group, the mix of JD-only and JD/PhD's is relatively tilted toward the former, classic model.

And the delightful news is that the familiar list of complaints about academic conferences simply does not apply to these tax law professors.  People actually try to communicate with each other (and they succeed), and questions are truly questions (as opposed to pathetic groping for "air time" to preen and impress).  Indeed, in a conversation during a break between sessions in Seattle, Professor Daniel Shaviro of NYU (himself a standout example of the classic model of legal academic success) specifically commented that the Princeton professor's list of complaints generally did not apply to legal academia (or, at least, to this branch of it).  We both commented that our sessions (fifteen in all, with a total of 58 papers) all involved people who were trying to engage in scholarly give-and-take, and although there are varying degrees of success, no one (and I really mean not one) belonged in the hall of shame that the NYT op-ed described.

One possibility is that there is something about the Law & Society meetings that improves the academic exchange, such that only good communicators come to the meeting to share their ideas.  Would that it were true.  I used to volunteer to be the chair/discussant for sessions in non-tax sessions, where the panels would include a mix of legal and non-legal scholars.  The non-legal scholars could almost all be described by at least one out of two of the Princeton humanist's more telling complaints:

"We have sat patiently and politely through talks read line by line in a monotone voice by a speaker who doesn’t look up once, wondering why we couldn’t have read the paper ourselves in advance with a much greater level of absorption."

"Our jaws have hung in disbelief as a speaker tries to squeeze a 30-minute talk into a 20-minute slot by reading too fast to be understood."

Indeed, to build on that latter point, after years of going to economics conferences, and then sitting through some of the Law & Society presentations by non-legal scholars, I finally figured out what must be the prime directive in the minds of all too many of these professors: "I have a certain series of words that I must utter.  If I do so, I have succeeded.  It does not matter if no one understands me, or if people are tittering for the last ten minutes of my talk as I ignore the chair's insistent reminders that I have gone overtime.  Unless and until I say the words that I set out to utter, I am not done."

Here, of course, I am speaking in absolutes.  Certainly, not every non-legal scholar speed-reads his prepared remarks.  And admittedly, some legal scholars ignore the "stop" signal, even when it is clear that the time they are taking is directly cutting into the time of the scholar sitting next them.  Even so, I can honestly say that I do not recall witnessing a legal scholar committing anything like the "I utters my words, and them I'm done" sin of public speaking.

In her NYT op-ed, the Princeton humanist offers a list of ways in which academics in her field could improve their presentations, and she concludes that if people "disregard these recommendations, [they] might be complicit in the death of the humanities."  Even though legal scholars do not generally have experience as teaching assistants, and even though the "legal style" is designed to be aggressive, my experience with academic presentations in law (with the notable exception of the areas of law most dominated by economists) is that the academic enterprise is alive and well, because these scholars actually try to communicate with each other, and they listen to others' suggestions and questions.  It is not nirvana, but it is as close to meeting the ideal of intellectual exchange that I have witnessed.